[Congressional Record Volume 141, Number 207 (Friday, December 22, 1995)]
[Senate]
[Pages S19259-S19260]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. HATCH:
  S.J. Res. 45. A joint resolution proposing an amendment to the 
Constitution of the United States in order to ensure that private 
persons and groups are not denied benefits or otherwise discriminated 
against by the United States or any of the several States on account of 
religious expression, belief, or identity; to the Committee on the 
Judiciary.


              religious equality constitutional amendment

  Mr. HATCH. Mr. President, religious liberty is the first freedom 
mentioned in the Bill of Rights. Today, I am introducing a religious 
equality constitutional amendment to restore that freedom to its 
intended and proper place in American society. This amendment is 
intended to rescue the first amendment's requirement that Congress 
``shall make no law * * * prohibiting the free exercise [of religion] * 
* *'' from a misguided Supreme Court jurisprudence and the hostility 
that jurisprudence has spawned among local, State, and Federal 
Governments toward the participation of religious institutions in the 
public square. This is the same amendment introduced by Congressman 
Henry Hyde, chairman of the House Judiciary Committee. In my view, our 
Nation benefits greatly from the participation of religious 
institutions in the public square. Religious values and influences are 
important components in addressing the social problems facing our 
country. These problems include the breakdown of the family, loss of 
respect for the values of human life, honesty, and hard work, the 
growing problem of juvenile crime, and the worsening drug problem.
  We can provide public support to private religious institutions in 
carrying out vital social welfare functions whenever public support is 
provided to private secular institutions without establishing a 
religion or group of religions.
  The amendment embodies two key principles. First, if public benefits 
are dispensed to private secular entities, Government cannot deny such 
benefits to private religious entities. Second, in dispensing such 
benefits among private religious entities, the Government may not 
discriminate among them based on religious beliefs.
  Mr. President, I introduce this amendment after careful personal 
consideration and considerable public debate. I revere the Constitution 
and do not take lightly the proposal of new amendments to it. But after 
long study and discussion, and a series of hearings in the Judiciary 
Committee which I chair, I believe that a constitutional amendment is 
necessary to protect the rights of believing Americans. These rights 
are now often denied as a result of a confused and often erroneous 
constitutional jurisprudence in the courts and discrimination against 
religious groups and individuals by administrative agencies.
  In our Judiciary Committee hearings this past autumn, we heard 
stories of individuals who were denied access to government benefits 
simply because of their religious beliefs. Surely no one who has not 
been schooled in the intricate confusions of first amendment 
jurisprudence would think that the cases we heard were fairly resolved.
  We heard from the station manager of the Fordham University public 
radio station, which was denied construction funds available to all 
other public radio stations by the Clinton administration's Commerce 
Department because it broadcasts the Catholic mass 1 hour a week.
  Arguments that the religious broadcast was a very small part of a 
very diverse programming schedule or that it was a practice going back 
more than 50 years were unavailing. Even the fact that the station was 
responding to community needs, as public stations are supposed to, by 
providing this religious programming to the elderly and disabled shut-
ins did not move the bureaucrats at the Commerce Department. Given that 
the station needed the funds to comply with government facility 
requirements, but were told that the station would receive no money as 
long as the offending program was broadcast, the Clinton administration 
was virtually saying, ``stop broadcasting Catholic mass or stop 
broadcasting at all.''
  This is appalling enough as an administrative abuse, but is has been 
abetted by a lower Federal court, and now awaits an appeals court 
decision. I should note that the statutory remedy provided by the 
landmark Religious Freedom Restoration Act, which I was proud to 
cosponsor and which President Clinton was proud to sign, was held 
unavailing in this case.
  Two Supreme Court cases that were much discussed at our hearings by 
constitutional experts point up the human costs of discrimination by 
the government in dispensing public benefits. In Aguilar versus Felton, 
the Supreme Court held that remedial English and math could not be 
provided to economically deprived children on the premises of their 
school, if the school is religious. Similarly, in the case of Witters 
versus Dept. of Services for the Blind, Larry Witters, and otherwise 
eligible applicant for Government assistance to blind students, was 
ultimately denied that assistance because his chosen course of study 
was religious. The Supreme Court held that the first amendment did not 
require that he be denied funding, but it was not prepared to hold that 
the First Amendment prohibited antireligious discrimination. On remand, 
the State supreme court of Washington found that the State constitution 
required the denial of benefits and the U.S. Supreme Court denied 
further review of the case. Mr. President, does it make sense that 
people with disabilities who are otherwise entitled to Government 
assistance are denied that help because they also choose to exercise 
their rights of conscience?
  Even when a religious person wins a case, it often takes so long that 
the help is no longer needed, or the case is decided on such narrow 
grounds or with such narrow vote margins that future parties have no 
comfort in ordering their conduct based on Supreme Court precedent. In 
the case of Zobrest versus Catalina Foothills School District, a deaf 
student's right to a deaf interpreter at school was not vindicated 
until well after he had graduated. And in the important case of 
Rosenberger versus University of Virginia, decided earlier this year, a 
Christian student group's right to funding of publishing activities on 
par with other student groups, including Jewish and Muslim groups, was 
upheld on a 5-to-4 vote, with Justice O'Connor, one of the five-vote 
majority, explicitly stating that the case was decided on its 
particular facts and that no broad principle upon which anyone can rely 
was announced in that case.
  Mr. President, more must be done to safeguard the right of conscience 
of religious Americans. Many of us have tried to help with statutory 
safeguards like the Religious Freedom Restoration Act. But statutory 
solutions are not wholly adequate to correcting the erroneous 
interpretations of first amendment law by the courts. Only a 
constitutional amendment can do that. And that is why I am proposing 
one today.
  The proposed amendment does not seek to bring back school-sponsored 
or state-sponsored prayer; it does not seek to create a nationally 
established theology. It merely seeks to require that the government 
act neutrally among beneficiaries of generally available resources. At 
a time when social values are eroding and family structures are 
collapsing why should we actively discriminate against religious 
entities and drive them out of the public square? At a time when all 
types of groups and viewpoints can receive Federal funds, why do we 
shut out or seriously hamper religious groups? At a time when we wish 
to make our Federal dollars go farther, why should we not take 
advantage of religious charities, day care, educational, or other 
social services? We should not be cutting ourselves off from their help 
simply because they have a partly religious mission. Nor should we be 
turning away otherwise qualified Americans from Government assistance 
simply because they seek to enjoy their rights as religious believers.

[[Page S19260]]

  On a more personal note, Mr. President, I come from a religious 
tradition which has known the heavy hand of government. People of my 
faith know what it is like to be a minority religion subject to 
persecution by other religions and by the State and Federal 
Governments. In the middle of the last century, the Mormons were driven 
from State to State, and ultimately out of the then-United States 
altogether, and even then they were still molested by the Federal 
Government. I am concerned that government not drive religion out of 
the public square and from our public dialog on issues confronting our 
people. And I am concerned that the Government not single out persons 
of faith for worse treatment than their fellow Americans when it comes 
to enjoying the benefits of public resources.
  Rather than upset the fine balance between religious beliefs and 
other philosophies in our pluralistic society, the proposed amendment 
seeks to restore it. No group should be disenfranchised by government 
fiat--and we should be especially careful that no group be 
disenfranchised for exercise of religious faith. Their rights were to 
be protected by the First particular among our Bill of Rights. It is 
sad that we must revisit so basic an issue in this way at this late 
hour because of recent aberrations in our Government's understanding of 
those rights.
  Mr. President, I realize that this is an important issue and that 
amending the Constitution is a serious step. I am confident that this 
amendment will generate useful discussion and debate about the issue, 
and I think that will be good for the country. I commend this amendment 
to my colleagues, scholars, and fair-minded people throughout our 
country, and hope it will find their support.

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